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Constitutional revision in Italy: lessons from the past for the Constitution of the future

by Giammaria Milani, PhD Candidate, University of Siena
The constitutional revision bill approved by the Italian Senate on August 8, 2014 deals with an issue that has resurfaced cyclically in the Italian political debate: the revision of Part II of the Italian Constitution, dedicated to the form of government and the relationship between the State and the Regions.At least since the early 1980s, several attempts have been made to amend the Constitution, but only once (2001) these have been successful, providing for an extensive revision of the State-Regions relationship.Such attempts have been characterized by the most disparate approaches, with regard to both the procedure followed and the scope of the revision.As for the procedure, the standard iter provided by article 138 Const. for constitutional amendment (two readings in each House of the Parliament, with the need to get at least one absolute majority in the second reading, and an eventual referendum; if in the second reading a 2/3 majority is reached, no referendum is allowed) has twice been derogated by constitutional laws providing for the creation of ad hoc bicameral committees and calling for a mandatory referendum (1992 and 1997) but both attempts failed. Conversely, the procedure provided by article 138 Const. was followed twice (2001 and 2005): in both cases the parliamentary process was concluded by absolute majority and in both cases a referendum was held; in 2005 the proposal was rejected by the people.In the 2014 constitutional revision, the legislator seems to have learned the lesson of the past by choosing to follow the article 138 procedure and avoiding recourse to special procedures derogating such provision: the fact that the bill was introduced by the government is perfectly consistent with this framework, despite some critical voices among scholars.
Regarding the scope of the constitutional revision, even in this case, past events seem to have provided insights a lesson. The previous failed attempts (1992, 1997, 2005) aimed to achieve an organic reform of Part II of the Constitution and it is likely that their wide reach ultimately contributed to their failure. Conversely, the 2001 successful revision only covered one specific aspect, namely the relationship between State and Regions, even though this required the amendment of a significant number of articles of the Constitution.
Similarly, the current ongoing revision does not attempt to achieve an organic reform of the entire Part II of the Constitution, focusing only on bicameralism and, once again, on regionalism.
On bicameralism, the bill aims to overcome the current system of so-called “perfect bicameralism”, characterized by the fact that both the House of Deputies and the Senate of the Republic have a confidence relationship with the Government. This has caused, in the last legislatures, several problems in the formation of the Government due to the presence of different political majorities in the two Houses. The current model would be replaced by a system in which the Lower House would hold a major role in the legislative process and an exclusive confidence relationship with the Government, and the Upper House would be vested with new tasks regarding the coordination between the State and the Regions.
To this effect the rules on legislative procedure and on Senate composition are to be amended. Regarding the former, the bill introduces different procedures depending on the matter to regulate: in addition to the “standard procedure” (where the Senate only enjoys the power to propose non-binding amendments to the texts adopted by the House) the revision introduces a a “fully bicameral procedure” (on constitutional matters, bills regarding Senate election, referendum and others matters, for which the approval of an identical text by the two Houses will be warranted), and a “partially bicameral procedure” (applicable essentially in case of laws regulating the relationship between the State and the Regions and for which the amendments proposed by the Senate can only be overcome by resolutions of an absolute majority of the House), and an altogether “special procedure” for the budget law.
The choice of the legislature appears, from a comparative perspective, consistent with the developments taking place in other legal orders, especially within Europe, where the relationship between the two Houses is modulated in the legislative procedure on the basis of the matters regulated.
A similar weakening of the actual role of the Senate would not have been possible without a rethinking of its system of election, which is currently based on a universal and direct vote. According to the bill, the Upper House will be composed by representatives of the Regions and the Municipalities; again, the choice seems to be in line with developments in several other European countries. In particular, the Senate will consist of 74 Members of the Councils of Regions and Autonomous Provinces (elected by the same Councils in proportion to the population), 21 Mayors (one for each Region or Autonomous Province, always elected by the Regional and Provincial Councils), and 5 senators appointed by the President of the Republic (for 7 years). It is worth noting that some parts of the proposal, as originally introduced by the Cabinet, providing for the appointment of a larger number of senators by the President of the Republic and a fixed number of representatives per Region, not in proportion to the population, were eventually overcome in the text approved on August 8.
The other main topic concerns the State-Regions relationship. As the effects of the 2011 revision were considered unsatisfactory, a new amendment was deemed necessary. While in 2001 the role of the Regions was strengthened through an expansion of their legislative power, the current bill narrows their room for maneuver. Several reasons pushed in this direction: first of all, the need to end the recurring conflicts between the State and the Regions caused by the several perceived flaws of the previous revision; secondly, the ongoing economic crisis that calls for a re-centralization of public power.
The bill aims to introduce a new distribution of competences, on the one hand by increasing the competences of the State and correspondingly narrowing those of the Regions; on the other, providing measures for State supremacy, such as a “supremacy clause” and the possibility for the State to issue “general and common rules” on a large number of matters.
The constitutional revision is currently only at its initial stage. In order for the revision to be approved at least three other readings are necessary (one of the Senate and two of the Lower House) in a political climate that sees the opposition acting fiercely against the measure, even through the recourse to rather robust filibustering tactics (in the first parliamentary passage, for instance, thousands of amendments were presented).
The text can, of course, be improved (in case of changes made by the House, however, the Senate will have to make another deliberation, because the two Houses need to approve an identical text); to do that, a responsible and constructive approach by the parliamentary majority and the Government is necessary; they have to be open to debate and confrontation with other political forces. At the same time, also the opposition should adopt a similar stance, replacing a resistance without quarters with the introduction of specific and well-drafted proposals. If both parties succeed in moving in this direction, the result will be positive and is likely to help simplify the process of public decision-making and to bring the Italian form of government in line with those currently in force in other European countries.
A general assessment of the bill needs necessarily to take in account also the current debate on the draft new electoral law for the House; a law that is necessary due to the declaration of unconstitutionality of several provisions of the previous electoral law issued by the Italian Constitutional Court in January of 2014. In fact, the design of the new electoral law will have a significant influence on the overall system of government and, in turn, is also likely to have important consequences on the impact of the constitutional revision.